Article 8 of the ECHR
The government is concerned that Article 8 of the ECHR (which provides a right to respect for family and private life) is used too often as a ground to block removals. Article 8 is a qualified right which can be limited on certain public interest grounds. The government proposes to legislate to narrow its scope in three ways:
To strengthen the public interest test which decision makers and courts must apply in determining whether removal would breach Article 8.To set out a narrower definition of who counts as a family member for the purposes of Article 8, to include “normally” only “immediate family members”.To limit how and when Article 8 claims can be made.
This is not the first time a government has sought to set legislative boundaries around the application of Article 8 in immigration cases. The Immigration Act 2014 set out public interest factors which must be taken into account in such cases – for example, that “the maintenance of effective immigration controls” and “the deportation of foreign criminals” are in the public interest; as well as factors that should be given “little weight” – for example private life or relationships established at a time when a person is in the UK unlawfully. It is not clear how the proposals in the first bullet above will add to the measures introduced by the 2014 Act.
In any case, the further the government goes in trying to limit Article 8 rights in national law, the more likely it is that the legislation or decisions under it will be challenged under the Human Rights Act. In particular it might be argued that the legislation goes beyond what is permissible under the ECHR, for example that the public policy justification for it does not fall within one the permitted factors set out in Article 8 (namely national security, public safety or the economic wellbeing of the country, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others).
The UK courts will be bound to apply the new legislation and have no power to set aside an Act of Parliament, but under section 4 of the Human Rights Act they could make a declaration that the legislation is incompatible with the ECHR, and claimants whose claims have failed in the domestic courts could take their cases to Strasbourg. The Strasbourg court typically allows states a “margin of appreciation” in determining where the balance between different public interest factors should be struck in giving effect to qualified rights.
That court already takes a fairly narrow approach to some aspects of Article 8, for example the definition of family members, and has upheld provisions of the UK law (pursuant to the 2014 Act mentioned above) stating that the public interest in deporting certain foreign criminals could be overridden only in exceptional cases.
However in that judgment the Strasbourg court observed:
“where the domestic courts do not carefully examine the facts, apply the relevant human rights standards consistently with the Convention and the Court’s case-law, and adequately balance the interests of the applicant against those of the general public, the Court remains empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8” .
8
Unuane v United Kingdom, 80343/17, 24.11.2020, paragraph [79].
So again the details of the proposed legislation will matter. The greater the restrictions it places on Article 8 rights, or on the ability of domestic courts to weigh the relevant factors, the greater the chance that the Strasbourg court will say it has gone too far.
Article 3 of the ECHR
The government is also concerned that the interpretation of Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment, has expanded over time. It correctly notes that Article 3 is an absolute right and so cannot be balanced against other public interest considerations (and see above on the duty to provide support).
It seems therefore that the government does not propose to legislate to try and alter the interpretation of Article 3 in domestic law (which would indeed be very challenging). Instead, it is “working with key partner countries” on the definition of “inhuman or degrading treatment”. Presumably the aim is to agree an amendment to the text of Article 3 or at least some form of interpretative statement.
Although possible in principle, this would require multi-state agreement and could take years.